The Court has considered petitioner Henry Staples' petition in
forma pauperis for a writ of habeas corpus and the first
supplement thereto; the memorandum on his behalf filed May 10,
1963; the brief filed July 2, 1963; a supplemental letter filed
July 9, 1963; respondent's answer to the petition and supplement,
motion to dismiss, and memorandum filed June 28, 1963; the
transcript of proceedings in the post-conviction hearing held in
the Circuit Court of St. Clair County on February 10, 1956, in
the matter of Staples v. Illinois; and the Illinois Supreme
Court's unreported affirmance thereof dated May 23, 1958 (No.
1978), cert. denied, 358 U.S. 851, 79 S.Ct. 78, 3 L.Ed. 2d 84
(1958). In addition, the Court has heard and considered testimony
presented at a hearing in this matter held on June 21, 1963, and
has examined the exhibits there tendered. On the basis of this
consideration and examination, the Court hereby makes the
following findings of fact and conclusions of law:

Findings of Fact

1. During the evening of October 11, 1942, at East St. Louis,
Illinois, petitioner's wife was struck repeatedly with an ax; she
died soon thereafter.

2. Petitioner was arrested early the following morning but
denied any participation in the homicide.

3. While in custody in a police squad car, petitioner verbally
agreed to a search of his home by police officers and accompanied
the officers to his home where, with an officer standing on each
side of him, he unlocked the door and they entered. The search
resulted in the discovery of an ax, a shirt and a pair of pants,
all bloodstained, and all of which were seized by the police.

4. Initially, petitioner maintained that the blood was that of
a hog he had recently butchered. However, after further
questioning, unaccompanied by physical coercion or threats, he
admitted having killed his wife, and he signed a written
confession thereof.

5. Petitioner was not taken before a magistrate until sometime
on the following day, October 13, 1942.

6. On December 18, 1942, petitioner was indicted for murder by
the Grand Jury for St. Clair County, Illinois. A few days later,
he was arraigned in the Circuit Court of St. Clair County where
he pleaded not guilty.

7. On January 13, 1943, while represented by privately employed
counsel, Mr. Noah W. Parden, petitioner withdrew his plea of not
guilty and entered a plea of guilty to murder.

8. The presiding judge, Morris B. Joyce, admonished petitioner
as to the consequences of this plea, but he persisted therein.
Judge Joyce received the plea, held a short hearing on the facts
— at which petitioner, among others, testified — and sentenced
him to 99 years imprisonment which term he is presently serving
at the Illinois State Penitentiary, Joliet.

9. Petitioner has made repeated efforts to obtain a copy of the
transcript of the above-described proceedings before Judge Joyce,
the first attempt being by a letter dated November 4, 1947. He
has never been successful and no such transcript presently
exists.

10. On February 10, 1956, petitioner's case was the subject of
a post-conviction hearing held in the Circuit Court of St. Clair
County before Judge Quinten Spivey.

11. Petitioner was represented therein by court-appointed
counsel, Mr. William R. Hotto, and petitioner alone testified in
his own behalf.

16. Staples' petition was filed in this Court in May, 1962, and
thereafter the Court appointed Mr. Thomas P. Sullivan of the
Illinois Bar to represent petitioner in the proceedings here.

17. In his petition to this Court (and first supplement
thereto), petitioner alleged the following grounds for the
granting of his petition: (1) he was denied due process of law as
guaranteed by the Fourteenth Amendment because he was unable to
obtain a stenographic transcript of his plea and sentencing for
use in perfecting an appeal; (2) he was denied the right to a
jury trial and to a fair trial; (3) he was denied the right to
call witnesses in his own behalf and to obtain a trial delay
until they could be present; (4) he had never made a voluntary
and intentional plea of guilty; (5) he was denied leave to
replace his attorney with counsel who would be of assistance; and
(6) his confession was obtained during a period of unlawful
detention and by means of psychological and physical coercion,
promises and threats.

18. In a memorandum filed in May, 1963, and later in a brief
filed in July, petitioner urged, in addition, that the confession
was induced upon confrontation with evidence uncovered by the
police as the result of an unlawful search and seizure. He does
not allege that this ground has ever been presented to any state
court authorized to grant the relief here requested. Nor does he
allege that state corrective process is currently unavailable to
him. The memorandum and brief also suggest that the arresting
officers delayed unreasonably in bringing him before a
magistrate, in violation of Illinois law (Ill.Rev.Stat. 1941, ch.
38, § 660), a contention which was raised by petitioner before
the Illinois Supreme Court in 1958 and decided adversely to him.

19. Petitioner was present at the hearing held on June 21,
1963, in this Court, but he did not testify. He offered no
evidence in support of his contention that he had not pleaded
guilty, that he had demanded and been denied a jury trial, that
he had sought to have witnesses called in his own behalf, or that
his attorney had not assisted him.

On June 21, 1963, following consideration of the many documents
submitted by both petitioner and respondent, this Court held a
hearing. Petitioner was present, but he elected not to testify.
Moreover, he offered no evidence in support of his contentions
that a confession had been obtained from him by means of physical
duress, that he had received an unfair trial, that he had not
knowingly pleaded guilty, and that he had demanded and been
denied a jury trial, a trial delay, and a change of counsel. The
uncontroverted testimony was that petitioner confessed without
having been subjected to physical coercion and that he pleaded
guilty after admonishment. Some of the evidence presented in this
Court does bear on petitioner's allegations that (1)
he was not brought before a magistrate within a reasonable period
of time;*fn1 (2) his "consent" to the search of his home, coming
at a time when he was in police custody, was not truly
consensual;*fn2 and (3) his confession was the result of his
being interrogated during the period of unreasonable delay and
his being confronted with property seized without a warrant in an
unconstitutional search. Before reaching these contentions, a
preliminary matter will be discussed.

Petitioner charges that he has been denied due process of law
because he has been unable to obtain a stenographic transcript of
the relevant 1943 proceeding. No such transcript presently
exists, and therefore some practical accommodation must be made.
Cf. Norvell v. Illinois, 373 U.S. 420, 424, 83 S.Ct. 1366, 10
L.Ed.2d 456 (1963).

Petitioner had ample opportunity, both before the Circuit Court
of St. Clair County in 1956 and here, to present evidence that
Judge Joyce conducted other than a fair and orderly proceeding.
Apart from his own testimony at the 1956 hearing, petitioner has
offered no such evidence. On the other hand, a considerable
amount of testimony has been presented which demonstrates that
Judge Joyce adequately protected petitioner's constitutional
rights, that petitioner was represented by competent counsel of
his own choice and was duly admonished, and that thereafter he
pleaded guilty. Due process of law has not been denied to such an
individual who, commencing more than four years after entering
his plea, repeatedly attempts to secure a copy of the transcript
of that plea but who, each time, is unsuccessful because no copy
can be found. Norvell v. Illinois, supra.

More serious is petitioner's contention that his constitutional
rights were violated by reason of (a) the delay in taking him
before a magistrate, (b) the non-consensual search and seizure,
and (c) the confession resulting therefrom. Petitioner contends
that, but for the unreasonable delay and unconstitutional search
and seizure, he would never have confessed, and if he had not
confessed (or if he had realized that the confession and seized
property were inadmissible in evidence against him) he would not
have pleaded guilty. He does not, however, here dispute that he
pleaded guilty while represented by competent counsel of his own
choice and after having been admonished as to the consequences of
his plea.

The decisions which deny to one who pleads guilty the
opportunity thereafter to challenge a constitutional violation
seem to me to weaken that security from harassment, for they
encourage police officers to invade privacy and conduct
interrogations in the hope of obtaining incriminating evidence,
confessions and, ultimately, guilty pleas. If the constitutional
defect is not discovered until after judgment, they (police and
prosecution) have successfully deprived a defendant of his
constitutional rights. Such a doctrine certainly does not
discourage violations of the Fourth and Fifth Amendments.

Although petitioner undoubtedly did enter a plea of guilty and
the tainted evidence was never in fact used in a trial against
him, he must necessarily have been influenced in so pleading by
the knowledge that the prosecution possessed the incriminating
evidence and his confession obtained by confronting him with that
evidence. Furthermore, while we have no way of knowing what
considerations went through the minds of petitioner and his
counsel, it is reasonable to assume that the plea of guilty was
induced at least in part because petitioner, who was charged with
a capital offense, hoped for some leniency in the sentence to be
imposed.

To conclude, then, that the guilty plea constituted an
intentional waiver of petitioner's objections to any
constitutional violations which had occurred, just as though the
tainted evidence and confession had been introduced at a trial
and no objection had been raised thereto, seems to me to read
more into the plea than is warranted by any reasonable inference
from the facts. Certainly no evidence in this record suggests
that petitioner did in fact so intend. The plea of guilty-waiver
doctrine not only whitewashes constitutional violations but in
addition, as applied to the facts of the instant case, results in
a conclusion unsupported either by evidence or by logic.

There remains the question, with respect to the
unconstitutional search and seizure, whether all state remedies
have been exhausted. 28 U.S.C. § 2254. Although the search and
seizure issue has never been presented to the courts of the State
of Illinois as a ground for granting the relief petitioner here
seeks, respondent
makes no contention that such an opportunity is presently
available. Cf. Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 9
L.Ed.2d 837 (1963). In view of the facts that (a) petitioner
never did appeal his conviction, (b) he has already been granted
a post-conviction hearing and an Illinois Supreme Court review
thereof, and (c) the sentencing court is not alleged to have
lacked jurisdiction over his person or the subject matter, it
appears that no state remedy is now open.

Under the applicable decisions, petitioner has not demonstrated
that he is in custody in violation of the Constitution, laws or
treaties of the United States because his guilty plea is deemed
to waive the constitutional or other defects in the proceedings.
Accordingly, the petition must be denied, and the cause is hereby
dismissed.

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